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US Says It Can Hack Foreign Servers Without Warrants
Advocatus Diaboli tips news that the U.S. government is now arguing it doesn't need warrants to hack servers hosted on foreign soil. At issue is the current court case against Silk Road operator Ross Ulbricht. We recently discussed how the FBI's account of how they obtained evidence from Silk Road servers didn't seem to mesh with reality. Now, government lawyers have responded in a new court filing (PDF). They say that even if the FBI had to hack those servers without a warrant, it doesn't matter, because the Fourth Amendment does not confer protection to servers hosted outside the U.S. They said, "Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to 'hack' into it in order to search it, as any such 'hack' would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary."
If nothing else, at least it's out in the open where they have to defend it.
Happiness in intelligent people is the rarest thing I know.
Ernest Hemingway
Good news for China and Russian state sponsored haxors then. Perfectly legal for them to steal from US gov and Corps.
So what they are saying is that anyone outside the US can freely hack US servers without a warrant too. Surely they don't expect special treatment?
const int one = 65536; (Silvermoon, Texture.cs)
SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
While I haven't looked at the court documents, I can't help but think that someone needs to get charged with perjury for providing false testimony for the original story they were pushing.
Usually a foreign property search requires the permission of that country to pre-approve the search. I very much doubt the US requested permission. Violating another country's sovereignty should never be taken lightly.
If only we could fall into a woman's arms without falling into her hands
US Constitution does not protect foreigners outside US jurisdiction, so it's not a violation. It may be a violation of treaty (which is a violation of law) or may be legally clear.
Just as pr0n resulted in rapid evolution of UI tech, excess by governments will result in rapid evolution of security, e.g. Apple and Android mobile devices.
How do US authorities feel about foreign nations hacking into US military and corporate computers? For example, this story: Chinese authorities hacked into Pentagon and other sensitive computers:
I'm guessing they don't like that. Which perhaps is what the United States means by "American Exceptionalism".
This makes no sense to me. They claim they don't need a search warrant because it's in another country, but if I lived and worked in another country for a foreign company the US still says I'd have to pay US income tax on that money. If I'm still answerable to US tax law (which is an amendment to the constitution) no matter where I live or who I work for the US government should also be applicable to the same set of rules.
We're beyond trusting these people. Secure your systems and assume the worst.
I've decided to stop wasting my time responding to AC trolls/sockpuppets... so if you want a response from me... login.
Isn't this very action what the Congress decreed would be construed as an act of war?
"The hallmark of humanity is the ability to move beyond sensory inputs" - Mary Helen Immordino-Yang
Well, if you can fly drones and kill innocent people with them in Pakistan without asking the government I guess you can hack their servers too.
-- Cheers!
Or are they trying to play it both ways? The government argued that they can force companies with a US presence to produce data from servers located anywhere in the world. Therefore might one therefore deduce therefore that such servers would still require a warrant and therefore be illegal for them to hack? They can't have it both ways (although they'll probably still argue that they can)
--- To save space, would readers please insert their own witty comment -here-
Yes. It would be perfectly legal in Russia to hack into an American server to gather evidence for a Russian trial (assuming the Russian constitution doesn't prohibit such activities in Russia.) However, because it would be illegal in America, the Russian law enforcement agent would still be subject to American prosecution, if discovered. So don't expect Russia to offer any information to America regarding the law enforcement agents or agencies involved.
John
And the reverse is also true. Any NSA officer hacking into a Russian server is subject to prosecution in Russia, if discovered.
Basically, personnel from both sides might want to avoid taking any vacations where the other side might arrest you.
SJW's don't eliminate discrimination. They just expropriate it for themselves.
Remember, the government is trying to argue that Silk Road was owned by Ulbricht, a US citizen. So what they're really claiming is that the 4th Amendment doesn't apply to a US citizen's papers and effects, if they happen to be physically located outside of the borders of the US. The Constitution imposes no such limitation; therefore, this is clearly unconstitutional.
The government's argument also begs the question -- and I mean that in its proper sense, as in, the government is making a circular argument. From the summary:
There is no such thing as a "blatantly criminal" anything until it has be ruled as such in a court of law. Getting a warrant is exactly what they must do as a first step towards proving something is illegal; they don't get to simply "assume" it's illegal and skip that step. It is exactly the job of the judge issuing the warrant -- and nobody else -- to decide what is "given!"
That concept is so basic and fundamental that it's an axiom upon which the entire US legal system is founded; it boggles the mind to think that any lawyer so incompetent as to make such an argument could even exist!
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
The server is on TOR, so the location is masked. The FBI knows that it isn't inside the US... How?
What makes you think a Tor server can't be hacked? Tor is just a network protocol that masks the source and destination addresses of a connection. It is not magical hack-proof server sauce.
In the case of the Silk Road, the server was hacked to do at least one thing: the law enforcement agency added malicious javascript that caused browsers who connected to their servers to cache that script. Then, when the hapless drug buyer disconnected from Tor, the script remained in their cache, and when they reconnected to a regular network connection, the script phoned home from their real IP address. That's how they identified buyers on the Silk Road. But if they've hacked the server, it is not hard to believe they didn't also determine its real IP address.
John
What court would grant a warrant for an action outside that court's jurisdiction? They don't need a warrant because there is no "do something in Iceland" warrant that can be obtained from a US court, at least not one that the local authorities would recognize.
a search of foreign property known to contain criminal evidence, for which a warrant was not necessary.
The reason we require you to get a warrant is to distinguish between the two meanings of "known to contain":
1. I can reasonably demonstrate the probability that this server contains.
2. I have a gut feeling that this server contains.
The problem is not that the actual Silk Road server got hacked, which is what the FBI is arguing. The problem is servers that do not contain criminal evidence getting hacked based gut feelings. That is why we require a warrant. We don't want our government hacking into servers on a whim and without a record, regardless of where those servers are physically located.
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...other nations don't need a warrant to hack US-Based Servers.
America is in no position; financially, morally or ethically; to talk down to other countries for what they do anymore....
I am in the EU. Thank you US Government for giving me permission to hack into servers in your country, them being overseas from where I am an all. I'll get right on that.
9/11: Never forget it was a false-flag operation
So are we working to hack Swiss banks or other off-shore financial institutions, looking for tax evasion by US citizens?
It would be a dragnet, but we know there is tax evasion occurring.
This would seem reasonable if the precedent stands. Especially if the evidence can be used for further warrants.
I need to watch Sneakers again...
BlameBillCosby.com
Yes... as long as the former nation state is larger/wealthier/more powerful than the latter.
File under 'M' for 'Manic ranting'
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That is, US courts don't have jurisdiction in Russia, so a US warrant to go to Russia and search a home there is worthless.
Any search in Russia would either be a) illegal, or b) need a Russian Warrant.
So if they don't get a Russian warrant, the Russian government could rightfully choose to charge them with a crime committed on Russian soil.
That said, the question then becomes, can the US government present evidence found in another country that was in violation of that other countries laws, as evidence in a US court room.
On the other hand, the US is not supposed to send US officials to illegally kidnap a human being and bring them back to the US without an extradition process approved by the foreign country. They do however allow bounty hunters to do that, and then arrest and charge the person the bounty hunter returns to the US. The bounty hunter often commits a crime in the foreign country, but the US does not arrest them, instead they simply take the criminal back.
If I were the judge, I would say that YES, the Government can in fact do this, but that the members of the government must identify themselves in the US court (chain of custody), and that they might face charges in the foreign country.
Clearly such actions could have significant affects on international relations, and it might be in the US's best interest to decline to do this.
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The argument would be that it took place in the US because that is where the server was located. (Right or wrong, that is what the authoritarians would say.)
Does that mean they think they're allowed to hack whatever banks and stock markets they want in foreign countries?
If so - imagine how effectively they might go after financial crimes.
Or is this just for when the FBI wants to overlap with the DEA on wars on drugs?
Laws apply wherever. It's the ability to enforce them that is at issue.
You're never going to agree to the extradition of one of your own spies if they get exposed, which is why you occasionally get "tit for tat" diplomatic expulsions, as it's the only real way of showing that you know you've been spied on, as the spy will most likely have diplomatic cover.
If you get caught red-handed spying abroad, it depends on which country you're talking about. North Korea would probably execute you, Canada would pack you off home and take you off their "actual diplomats" list.
To have a right to do a thing is not at all the same as to be right in doing it
They can kill foreign people, what's a bloody server.
Human rights don't work that way. The US Constitution is very carefully worded, especially regarding where it says "person" or "people" and where it says "citizen" or "citizens".
Here's the Fourth Amendment:
That doesn't say "citizens". It says "The right of the people".
Actually, this is not true. In some cases, the laws apply to you wherever you go. While it may not necessarily be applied to computer crimes, it most certainly does to crimes involving children (yes I know, think of the children). Example: American man goes to place where sex with children is legal (personally, those places need to be nuked from orbit), man returns to the US, the authorities had been notified of such through whatever mechanism, man is arrested upon landing (might have to clear customs first, not sure on that point). Granted, this is only 1 aspect in a sea of them, but the fact remains, US law was enforced on someone who did something legal in another country.
I came, I conquered, I coredumped
I know you're making a joke here but just to be a pedant: it can and has been argued that feet touch the soil by extension of whatever clothing, platform or cushion are providing support between the foot and the dirt. This includes bodies of water, concrete, shoes, trees...etc.
The law is whatever the government says it is. From the federal government to "civil forfeiture" by the local cops. In 'murica, we now live in a police state. Deal with it.
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Technically? I believe the CAN!
Legally? This may be termed an "act of war". Best to be careful here.
You see? You see? Your stupid minds! Stupid! Stupid!
...when this was called espionage and it was conducted by the CIA. If the FBI needed something from outside of our borders, it asked the local police for it because that is how law enforcement is supposed to work...within the rule of law.
Logically, this is the equivalent of invading a foreign country's territory and seizing property. Wouldn't this be considered an act of war?
By what authority can the FBI declare war on another nation without the consent, or at least consultation of Congress? And then there's the whole United Nations Charter (of which the USA is a signatory). Shouldn't such an activity be subject to the authority of the United nations Security Council?
I wouldn't be surprised if Ulbricht, upon losing his case in US court, appeals to the International Court of Justice
Have gnu, will travel.
When has an act of war ever required a warrant?
quiquid id est, timeo puellas et oscula dantes.
I'd mod +1 if I could.
This does fall under spying. It's a good analogy.
The thing that upsets me, and apparently not others, is that our government is so incompetent at spying that they have to blow their own fucking cover.
It little behooves the best of us to comment on the rest of us.
Sue? Nah, I want the offended country to consider the hacking as an act of war, justifying the seizing of assets and jailing of US government officials on charges of espionage. And a big country; too big to drone / carpet bomb. I'd advise Brazil to conduct a test case.
I was unaware that the Fourth Amendment stipulated geographical boundaries. I was rather under the impression that the rules stating what the government and its agents shall not do were quite explicit about it being the actions that were prohibited, not where or to whom.
In fact, I see nothing in the Constitution that grants any exemptions for the government or its agents with regards to extraterritorial activities or the affairs of extranational citizens. Now, there are reasonable limits (well, there are supposed to be) on interpreting the Constitution. No rational person believes politicians should be free to say anything at all. But this isn't a claim of fair exception, but of inapplicability. Quite a different matter. The Constitution defines what the government may lawfully do. It does not say "except on weekends", it does not say "except on the Internet", it does not say "except when it's convenient". Reasonable situations are, by definition, reasonable. If you choose to argue reasonable situations do not exist, that is fine. Zero is still a number. But the government cannot simply argue (with any validity) that it can arbitrarily create entire classes of exemption with no reasonableness shown or claimed.
I'm purposefully ignoring the Silk Road aspect. If that isn't claimed as a legitimate exemption, then that is immaterial to the debate.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Within the US, doesn't a warrant do two things?
Presumeably, if the FBI has no intent of prosecuting the people involved, (1) is irrelevant. And (2) is only an issue if there are extradition treaties with the foreign country whereby the FBI officers and management involved could be hauled off to some gulag somewhere. Whether the State Department wants to avoid a diplomatic dust-up is another matter.
This assumes that you can put morals and ethics completely aside.
Think you mis-spelled NSA.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
You're never going to agree to the extradition of one of your own spies if they get exposed, which is why you occasionally get "tit for tat" diplomatic expulsions, as it's the only real way of showing that you know you've been spied on, as the spy will most likely have diplomatic cover.
Most likely not, since you have to have some sort of official diplomatic or consular function which means you can't go undercover. It's more that both sides do it and cracking down hard on foreign spies will be very bad for your own assets.
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they're owned in other countries, so of course we don't need warrants.
unless we have a treaty that says otherwise.
How other countries respond to it is another issue.
The Kruger Dunning explains most post on
...that's what treaties are for. I haven't checked yet, but who wants to bet that a few treaties were likely breached in this case?
Every couple of decades some stupid soziopathic world dominating assholes are begging for a next world war? Fukemal That just makes no sense from a macroscopic view. Cooperation is the key to survival and it needs faith in relationship. What are they trying to achieve?
Um, by definition I think anyone can "Hack" Foreign Servers Without Warrants...
The question if they can legally access foreign servers without warrants is another matter entirely.
American Judge: "Given that your client is a blatant criminal, we'll just forego on all that jazz, and we'll go straight to guilty!"
for another 'world apology tour' like he did just before and just after he was coronated the first time. It seem that this Hussein has take the mantle of power a little to seriously.
... "When you pry the source from my cold dead hands."
Not because we're "free".
This case has nothing to do with spying on foreign powers. It's about federal agents searching through the private effects of an individual, which is explicitly, specifically, Constitutionally illegal without a warrant.
Everyone on slashdot seems confused because this is on the internet. Spying is spying. It's legal in your own country to spy on foreign powers, it's illegal in the country you're spying on.
You're never going to agree to the extradition of one of your own spies if they get exposed, which is why you occasionally get "tit for tat" diplomatic expulsions, as it's the only real way of showing that you know you've been spied on, as the spy will most likely have diplomatic cover.
If you get caught red-handed spying abroad, it depends on which country you're talking about. North Korea would probably execute you, Canada would pack you off home and take you off their "actual diplomats" list.
OK Canada, please spy on xyz for me and I will spy on abc for you. Don't you just love these loopholes?
Leslie Satenstein Montreal Quebec Canada